Opinion
03-22-00741-CR
10-30-2024
Daniel Bradford Foster, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 424TH DISTRICT COURT OF LLANO COUNTY NO. CR8253, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Before Justices Baker, Kelly, and Smith
MEMORANDUM OPINION
Chari L. Kelly, Justice
Daniel Bradford Foster appeals from the trial court's judgment adjudicating him guilty of burglary and sentencing him to 37 years imprisonment on two grounds-ineffective assistance of counsel and actual innocence. We affirm.
BACKGROUND
A Llano County grand jury indicted Foster on a second-degree burglary charge. The indictment alleged that Foster "did then and there intentionally or knowingly enter a habitation, without the effective consent of Amanda Greenwood, the owner thereof, and attempted to commit or committed theft of property, to-wit: a dog, owned by Amanda Greenwood." The indictment also alleged two enhancements-a 1997 felony robbery and a 2011 felony possession of controlled substance.
On January 6, 2022, and as part of a plea bargain, the trial court received Foster's plea of guilty to the charge and true to the enhancements, heard the evidence, found it substantiated Foster's guilt, deferred further proceedings without entering an adjudication of guilt, and placed Foster on deferred adjudication community supervision for a period of ten years.
Before pleading, the trial court informed Foster of the consequences of a violation of a condition of deferred adjudication community supervision and Foster repeatedly acknowledged the range of punishment-25 years to 99 years or life in prison-that would apply were he adjudicated. He also expressed satisfaction with his public defender. The trial court asked Foster, "Are you pleading guilty and pleading true simply because you're guilty and because the allegations are true and for no other reason?" Foster responded, "Yes." The trial court asked Foster, "And are you pleading guilty and pleading true freely and voluntarily?" Foster responded, "Yes." Foster also acknowledged that, as part of the plea bargain, he had waived his right to appeal or file a motion for new trial after the plea hearing.
Less than a month later, the State filed a request for adjudication alleging, inter alia, that Foster committed an assault on the same day that he pled guilty (violating condition 1), that the deputy who arrested him for that assault smelled alcohol on his breath (violating condition 2), and that Foster failed to report the arrest to his probation officer (violating condition 7). The State later filed a first amended request for adjudication adding the allegations that Foster violated condition 5 because he failed to report to his probation officer and condition 14 because he failed to pay costs, fees, fines, and bond arrearages.
At the adjudication hearing, Foster pled not true to violating condition 1 and true to violating conditions 2, 5, 7, and 14. Before pleading, Foster again acknowledged the applicable range of punishment, again expressed satisfaction with his public defender, and again represented that his pleas were free and voluntary.
The State then put on evidence of the assault. Anthony Moreno Witcher, who knew Foster from jail, testified that Foster approached him while he was in his yard enjoying a fire with his girlfriend. Foster punched him in the face. They both fell towards the fire, and Witcher landed in it, burning his hands. Foster got up and walked away. Foster called Amanda Greenwood who testified that her sister had been in a relationship with Foster, and that, on the day of the alleged burglary, "Him and my sister got into an argument and I had had their dog. And he didn't break anything or steal anything." Rather, "[h]e trespassed, took the dog, and I called the cops. I wanted to teach him a lesson. You can't just walk into someone's home, even if you're with my sister, and take a dog. It's his dog, but, needless to say, it was my house." She did not feel like she had been burglarized, and she had thought the case had been dismissed. She also described Foster on and off drugs as a "night and day difference." She testified he needed help with drugs and anger management. She was willing to "help" him but would not "lie for" him and would "turn [him] in" or "call the cops" on him again if need be. She acknowledged that in her written statement on the case, she said that the dog belonged to her sister. But on the stand, she reiterated that the dog also belonged to Foster, "They're a couple, so yes. It's both their dog."
Foster also called Stephanie Greenwood; she testified similarly. She said she had the dog, Hopper, for about a year while Foster was in jail. She did not consider Hopper to have been stolen or taken with any intent to keep Hopper from her. She also testified that she would help Foster if his probation were continued; she would go to "AA or NA with him" and would "walk with him the whole way." Foster then testified. He acknowledged his problem with methamphetamine and his "bad choices" and asked for help. His public defender asked him about his plea:
Defense: Daniel, before we started this hearing we discussed all the options available to you, didn't we?
Foster: Yes, sir.
Defense: And you choose -- no one else put those words in your mouth -- you choose to take an open plea in front of the judge knowing that he would be able to sentence you 25 to life?
Foster: Yes, sir.
Defense: And you did it anyways because why? Why would you do that?
Foster: Because I believe in taking -- I really believe in taking, you know, account of what you've done. You know, the things that he said that I did, I did. There's no sense in arguing about them or lying about them. We can pitapat all day long and argue about it, but the truth is I did it, so I wanted to say so.
Defense: Is there anything else the judge needs to know about you or what you might need for help? Why do you need help?
Foster: I need help because my life is out of control.
Foster never expressed a desire to withdraw his plea-either his original pleas of guilty and true, or his present pleas of true. In closing, the State argued Foster was "not a good candidate for probation" and asked "for a substantial jail sentence, prison sentence." The Defense pointed to Foster's support system, noted that the "underlying offense here, it's just on the very edge of what could be considered a burglary" and asked the trial court for "some mercy," for "SAFP on top of the ten months he's already done" and "drug court after that."
The trial court found true the alleged violation of condition 1, and the other alleged violations to which Foster had pled true, and revoked the probation, adjudicated him guilty, found the enhancements true, and assessed punishment at 37 years' imprisonment. Foster appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Foster argues that counsel's failure to move to withdraw the guilty plea-after the Greenwood sisters' testimony raised actual innocence-fell below the objective standard of reasonableness and caused prejudice, entitling him to a new sentencing hearing.
Applicable Law and Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant must establish that counsel's performance was deficient, and he suffered prejudice because of that deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is deficient if it falls "below an objective standard of reasonableness." Id. at 688. Prejudice exists if an appellant shows "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellant "bears the burden of proving by a preponderance of the evidence that counsel was ineffective." Id. at 813. "Claims of ineffective assistance must be firmly rooted in the record." Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App. 2023).
On direct appeal, there is a "substantial risk of failure" raising ineffective assistance of counsel because in most cases, "the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 813-14. If trial counsel has not had the chance to explain the reasons for his conduct, an appellate court "will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Application
Foster argues that, after "clear evidence of innocence emerged in the [adjudication] hearing" no reasonable strategy could justify counsel's failure to move to withdraw the guilty plea. And he argues that but for this single error, a reasonable probability exists that the results of the proceedings would have been different because the trial court would have either granted the motion or abused its discretion in denying it-creating a preserved issue on appeal that likely would result in a reversal.
"A liberal practice prevails in this state concerning the withdrawal of a guilty plea[.] "Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). A defendant can withdraw his guilty plea as a matter of right until judgment has been pronounced or the case has been taken under advisement. Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004). Thereafter, the withdrawal "is within the sound discretion of the trial court." Jackson, 590 S.W.2d at 515. "A case has been taken under advisement once a plea has been entered, both sides have presented evidence, and the trial court has accepted pleas, deferred adjudication, and placed [the] defendant on community supervision." Labib v. State, 239 S.W.3d 322, 331 (Tex. App-Houston [1st Dist] 2007, no pet.).
As Foster explains, because a trial court does not have a duty, in jury-waived proceedings, to withdraw a plea of guilty when evidence fairly raises an issue of innocence, the defendant must act in some affirmative manner (e.g., move to withdraw the plea or object to the trial court's failure to sua sponte withdraw the plea) to be able to make the issue reviewable for an abuse of discretion on appeal. Mendez, 138 S.W.3d at 350; Aldrich v. State, 104 S.W.3d 890, 893-96 (Tex. Crim. App. 2003). See Davison v. State, 405 S.W.3d 682, 689 n.41 (Tex. Crim. App. 2013) (noting Mendez holding was predicated "on the fact that due process does not prohibit an innocent defendant from nevertheless pleading guilty-so long as he does so voluntarily and intelligently").
Foster argues, "Counsel failed to preserve this critical issue; no 'trial strategy' could justify ignoring the fact that your client turned up innocent." A similar ineffectiveness claim was made and rejected in Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001). Mallett entered an open plea, and the trial court sentenced him to confinement. Id. at 62. On appeal, Mallett claimed that his counsel was ineffective for failing to move to withdraw his guilty plea after he testified that he did not act intentionally when he put the semi-truck he had stolen in reverse and backed over an officer's car. Id. at 63.
There, as here, the trial court had properly admonished the defendant. Id. at 64. There, as here, the defendant had represented to the trial court that he was pleading guilty because the charges were true, and that he was pleading guilty "freely and voluntarily." Id. And there, as here, the appellate argument assumed the defendant wanted to withdraw his plea, which was not supported by the record. Id.
The Court of Criminal Appeals noted that: "even if Mallett's testimony was read as a protestation of innocence, all sorts of considerations may motivate a guilty plea." Id. The Court found dispositive the fact that the record was silent on counsel's strategy. Id. at 64-65. The Court remarked that "counsel may have felt that he could not rebut the recitations in the record that Mallett's plea was freely and voluntarily entered," but held that "speculation on counsel's strategy is immaterial to our determination that counsel has not been proven ineffective." Id. Although Mallett was an appeal from an open plea and sentence to confinement, Mallett controls: Foster cannot overcome the first prong of Strickland because the record is silent as to why counsel failed to act to withdraw the plea. Counsel may have decided to call the witnesses to mitigate Foster's punishment; as noted above, counsel used the sisters' testimony in arguing for mercy. As in Mallett, the recitations in the record reflect that Foster's plea was freely and voluntarily entered. And by all indications, Foster wanted to take responsibility for his actions. On this record, we cannot conclude that counsel's conduct was so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 440. Because Foster failed to satisfy the deficient performance prong of the Strickland test, we need not consider the prejudice prong. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). We overrule Foster's first issue.
DUE PROCESS VIOLATION-ADJUDICATION & ACTUAL INNOCENCE
In his second issue, Foster argues that the trial court violated his due process rights by adjudicating him guilty of burglary "where the record clearly showed actual innocence" entitling him to a new adjudication and sentencing hearing.
Applicable Law and Standard of Review
"The determination to proceed with an adjudication of guilt on the original charge is reviewable in the same manner as a revocation hearing conducted under Article 42A.751(d) in a case in which the adjudication of guilt was not deferred." Tex. Code Crim. Proc. art. 42A.108(b). At the end of an article 42A.751(d) hearing, the trial court "may continue, extend, modify, or revoke the community supervision." Id., art. 42A.751(d). That decision may be appealed, but the appellant cannot, in that appeal, raise any claim-including any sufficiency claim-that he could have brought on an appeal from the original imposition of that community supervision. Wiley v. State, 410 S.W.3d 313, 321 (Tex. Crim. App. 2013); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); see Pizana v. State, 398 S.W.3d 728, 730 (Tex. App.-San Antonio 2009, no pet.).
Due Process applies at adjudication hearings.
To meet the requirements of due process, the final revocation of probation must be preceded by a hearing, where the probationer is entitled to written notice of the claimed violations of his probation, disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, a neutral hearing body, and a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation.Ex parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) factors). And due process claims are cognizable on appeal from adjudication hearings. See Hughes v. State, 691 S.W.3d 504, 514 (Tex. Crim. App. 2024) (due process violated by trial court's muting of defendant's microphone during teleconference adjudication hearing).
At the adjudication hearing, "the trial judge is the sole judge of the credibility of the witnesses and the weight to be given to their testimony." Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). To revoke probation in a deferred adjudication case, the State must prove a violation of a condition of probation by a preponderance of the evidence. Id. We review the trial court's revocation for an abuse of discretion. Id.
Application
Foster forthrightly acknowledges the bar to presenting issues related to the original plea proceeding in an appeal from an adjudication proceeding. He does not allege the trial court abused its discretion in finding the State's alleged violations true. He does not even allege that the trial court failed to abide by the requirements set out in Gagnon v. Scarpelli. Rather, Foster argues we should recognize a due process exception to the procedural bar to raising original plea issues in an adjudication appeal where the evidence at the adjudication hearing shows actual innocence. According to Foster, this narrow due process exception should apply in this case because "the testimony of the Greenwood sisters created an evidentiary record that reflects quite conclusively that no burglary took place." We need not explore the need for a due process exception because we disagree with Foster's representation of the record. The Greenwood sisters' testimony, even if believed (and it need not have been), raises a sufficiency issue, not an actual innocence issue.
A person commits burglary if, without the consent of the owner, he enters a habitation and commits or attempts to commit theft. Tex. Penal Code § 30.02. A person commits theft if he "unlawfully appropriates property with intent to deprive the owner of the property." Id., § 31.03. The Texas "theft statute does not make it a crime to exercise control over one's own property, or property that no one else has claimed." Lang v. State, 664 S.W.3d 155, 169 (Tex. Crim. App. 2022). But it does make it a crime to exercise control over property that another person has a greater right to possess because an "owner" includes a person with "a greater right to possession of the property than the actor." Tex. Penal Code § 1.07(a)(35)(A). And "a person's 'right to possession' must be measured at the time of the accused's alleged criminal act." Morgan v. State, 501 S.W.3d 84, 92 (Tex. Crim. App. 2016).
The sisters' testimony, taken as true, may have raised a fact issue about whether Foster or Amanda Greenwood had the greater right of possession of Hopper when Foster took Hopper, but that testimony at most raises a sufficiency or "guilty only of a lesser-included offense issue, not an actual innocence issue. See State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010). Foster himself acknowledges that he is guilty of criminal trespass.
Because Foster's complaint is a sufficiency of the evidence complaint, he was obligated to bring that claim in an appeal from the original imposition of community supervision. Wiley, 410 S.W.3d at 321; Manuel, 994 S.W.2d at 661-62. And although Foster waived his right to appeal from the original imposition of community supervision as part of his plea bargain with the State, the procedural bar to raising that claim now still applies. Perez v. State, 424 S.W.3d 81, 85-86 (Tex. Crim. App. 2014). We overrule Foster's second issue.
CONCLUSION
Having overruled Foster's issues on appeal, we affirm the judgment of the trial court.
Affirmed